One of the top stories in the news in the US is about a young college boy who has just been convicted of raping an unconscious girl. What's controversial is that he got 1/12th of the sentence the prosecutors were asking for (6 mos vs. 6 years). Yes, he will be a registered sex offender for the rest of his life, but one wonders if he would have gotten 6 months had he not been a white college boy with an otherwise bright future and not been a successful college athlete as well.
In other words, suppose that instead he had been a young black man with less than a high school education and a minor record for petty crimes.
Well, actually, if you want to discuss that topic, start another discussion. It's not what this discussion is about. This one is more philosophical.
I assume all of us accept the idea that a drunk person can't give legal or moral consent to having sex. And most of the time we think of this person as female.
Here's the question:
Can a male who's equally drunk refer to his drunkenness as a defense? In other words: "I was so drunk I was unable to gauge her consent in any legal or moral sense"? thus turning a potential rape charge into a "shit happens" sort of situation.
And what if the drunk woman asking for sex? I can remember three situations like that back when I was in college and good looking. In every case, I declined because I feared morning after regrets (I wouldn't have feared a rape charge back in those days: my qualms were more ethical than legal). In one case, the female thanked me the next time she saw me. I assume the other two girls think I was a fool.
This is almost always a crime with a male "perp" and a female victim.
It appears you're holding the perp to a different standard than the victim. It would seem that if a drunk male has enough intellectual wherewithal left to initiate sex a female in the same state can have no less. And yet, it would seem most people would say that when it comes to sex, men are the more responsible party. (Women are to be treated like children, in other words.)
If the victim is incapable of giving consent because of a degree of inebriation, what of the accused if he is in the same state? In other words, if she can't give consent can he be expected to be able to gauge consent accurately? Frankly, I don't see how.
Now, I'm not talking about a situation where he is considerably less inebriated than the female and certainly not where she is actually unconscious. I'm only talking about a situation where both are pretty done for from drink or drugs. Is it fair to charge a male with rape in such a case? And if so, wouldn't that imply that men are more responsible legal agents than women? which would perpetuate a legal double standard that I thought we had left behind in the interest of giving women equality. Have women no responsibility when it comes to imbibing alcohol or using drugs?
You are implicitly assuming that simply because she's drunk she's not cooperating and not giving consent. It's just not legally meaningful consent.
Consider the situation where both are drunk. She's drunk enough not to be able to give meaningful consent and so her unhibitions are on hold. She appears to be into it, and at the same time he's so out of it that he can't really gauge her consent and goes on the basis of her seeming to cooperate.
Would you still hold him to a higher standard than her?
That's an outdated definition. Having sex with someone incapable of giving legally relevant consent is now considered rape. Obviously, that applies to sex with children, but also to someone whose judgment is impaired, even if they are an adult and even if they are being cooperative or even enthusiastically cooperative.
If you take advantage of a transient vulnerability to get sex, that is rape.
The legal definition has presumably been updated with good reason. Given that definition, and taking the example of drunk adults that you gave, it seems to me that the law itself is holding the perp to a higher standard. Perhaps this is the right thing to do in law? I'm not an expert in the area so do not know.
It seems to me obvious that if one party can be too drunk to give consent, a party can be too drunk to be expected to accurately gauge consent.
That just seems so obvious. It also seems obvious that a prosecutor would want to ignore that fact and that judges and juries might want to ignore it as well, just to get a conviction.
That should not be how the justice system works.
It is a question of fact for both the victim and the perpetrator. Does the female possess the requisite mental clarity to consent and does the male have the requisite mental clarity to gauge the consent of the female. If not, then in the former case all things being equal it is rape. In the latter it is not rape.
Criminal conviction requires mens rea. There is no strict liability.
So for instance if a guy is a sleep-walking rapist then he is unlikely to be convicted of rape. (There may be circumstances in which the hypothetical produces a diiferent result but this illustrates the general legal principle I am alluding to)